It did not work the second time around

Perhaps the only thing worse than leaving your fate in the hands of the Civil Court is to leave your fate at the mercy of the Appellate Division.  I say this not in a disparaging way; it just bespeaks the randomness of the decisions that come from these Courts.

Those who have been in this business awhile (>10 years) can tell you that cases you didn’t think you should win you won, and those cases that you should have won, you did not win.

This occurred to me in the last month.  An appeal that I perfected due to frustration and without much legal precedent was a victory for me. (Koyachman v Paige Mgt. & Consulting, LLC, 121 A.D.3d 951 [2d Dept. 2014]).  I was beyond shocked to have won Koyachman.  The failure to serve an OSC as directed in the order mandates the denial; yet, there is now a Koyachman exception.

Yesterday, the court despite granting similar relief to Plaintiff on similar affidavits in Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102 (2d Dept. 2009), denied similar relief in Interboro v. Johnson.   In both of these cases, the insurance carrier solely relied upon a radiological review.  Compare Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co.. 28 Misc.3d 136(A)(App. Term 2d Dept. 2010)(finding prima facie entitlement to summary judgment on causation based upon radiological review)

Compare this to  Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc.3d 135(A)(App. Term 1st Dept. 2013), where the carrier relied upon a radi0logical review and a peer review to dispute the causal relationship between the accident the treatment, and the Court dismissed the complaint.

A similar instance of this disconnection between cases with similar records  is the Appellate Term holding that a low-impact study cannot disprove causation (Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.. 17 Misc.3d 97 [App. Term 1st Dept. 2007]), while another Appellate Term held that the low impact study was not only sufficient to raise an issue of fact; but was sufficient to prima facie prove lack of causation.   Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 34 Misc.3d 153(A)(App. Term 2d Dept. 2012)

Or, how about the Appellate Term which held a conclusory affidavit was insufficient to defeat a medical necessity motion (Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc.3d 139[A][App. Term 1st Dept. 2013]), yet allowed the same type of conclusory affidavit to defeat the motion.    Arnica Acupuncture P.C. v Interboro Ins. Co., 43 Misc.3d 130(A)(App. Term 1st Dept. 2014)

So Johnson is another example of placing your fate with the Appellate Division and hoping for the best.

Break in the chain of causation

Kester v Sendoya, 2014 NY Slip Op 08379 (1st Dept. 2014)

“While plaintiff’s certified medical records may be referenced to show her complaints and the doctor’s referral for treatment (see Salman v Rosario, 87 AD3d 482, 483 n [1st Dept 2011]), those records demonstrate that in the months following the February 2010 accident plaintiff sought treatment for other conditions but made no complaint of shoulder pain until June 2010. She was then referred to an orthopedist, but did not seek medical treatment for her shoulder injury until August 2010, some six months after the accident, and had an MRI performed the next month. Absent any evidence of contemporaneous, postaccident treatment or evaluation of plaintiff’s shoulder, she failed to raise an issue of fact as to whether her shoulder condition was causally related to the accident (see Henchy v VAS Express Corp., 115 AD3d 478, 479 [1st Dept 2014]; Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]). Furthermore, the affirmed report of her orthopedic surgeon, who first examined plaintiff a year after the accident, was insufficient to raise an issue of fact”

The failure to treat for a particular condition (or to show evidence of same) for 6 months following the motor vehicle accident will break the chain of causation and render an opinion on causation as speculative.  This is the extension and really what the Appellate Term meant when it reversed Amato.

Permanent consequential v. Significant limitaton – the value of early surgery

Sutliff v Qadar, 2014 NY Slip Op 07769 (1st Dept. 2014)

This case really discusses the danger on the personal injury side of the “significant limitation prong” of 5102(d).

Factually, there was an accident in December 2009.  The Claimant presumably had standard PT and other treatments.  He had positive clinical tests and other positive objective tests.  The Plaintiff underwent shoulder surgery February, 2010.

We learn that there was  minor limitation of the shoulder in June, 2010. Presumably. an IME in 2012 or 2013 found normal range of motion and attributed the injury to other forces.

On this record the following happened:

Permanent Consequential

(1) plaintiff failed to raise a triable issue of fact as to the existence of a “permanent consequential” limitation of use of the left shoulder.

(2) On the causation issue (and this is interesting): “To the extent plaintiff argues that the orthopedist found a causally related injury, the orthopedist opined that the causally related injury amounted to only a minor contusion and, based on his review of plaintiff’s medical records, attributed the more serious symptoms to the preexisting injury (see Bravo v Martinez, 105 AD3d 458, 458 [1st Dept 2013]).”

Significant Limitation

“The affirmed reports of plaintiff’s treating physician found substantial limitations and positive clinical tests results in January 2010, a month after the accident, and plaintiff underwent shoulder surgery in February 2010 (see Thomas v NYLL Mgt. Ltd., 110 AD3d 613, 614 [1st Dept 2013]; cf. Vasquez v Almanzar, 107 AD3d 538, 539-540 [1st Dept 2013]). The treating physician also noted that plaintiff’s prior shoulder injury improved with therapy, and opined that the subject accident caused significant injuries to the left shoulder. This evidence, as well as evidence that plaintiff returned to work full time over a year prior to the subject accident, raises a triable issue of fact as to whether this accident caused an aggravation or exacerbation of the prior injury (see Nelson v Tamara Taxi Inc., 112 AD3d 547, 548 [1st Dept 2013]). Further, plaintiff submitted an MRI report performed after the accident, and an operative report of his orthopedic surgeon, which provide objective proof of a preexisting partial tear that may have been aggravated by the subject accident, and of a new symptom following this accident ”

What do I take out of this?

Causation is varies on the prongs of the statute, which is strange.  But it tells us that a positive MRI, clinical results and early surgery will satisfy significant limitation.  Also, a Plaintiff who went back to work from a prior injury but then lost time from work will raise an issue of fact as to causation.

This one hurts the carriers, and I think increases the importance of early surgery in increasing the value of a PI case.  I cannot believe I am saying that exposing people to the risks normally attendant with surgery prematurely will many times shield the Plaintiff from being nonsuited on a significant linitation claim.

No Fault angle

No Fault covers any exacerbation.  We see (at least as to permanent consequential) that this not the case: “the orthopedist opined that the causally related injury amounted to only a minor contusion and, based on his review of plaintiff’s medical records, attributed the more serious symptoms to the preexisting injury”

In no-fault, any causal relationship would be payable by no-fault.  On the PI side, if you can disaggregate the symptoms, causation is not as clear cut and will go to the jury.  I have been looking for a case where the theory that the BI coverage on causation is less expansive as no-fault.


Biomechanical Engineer allowed to testify

Vargas v Sabri, 2014 NY Slip Op 01666 (1st Dept. 2014)

In the world of the use of  bio mechanical engineer issues, this case is actually a watershed case.  Here, the Appellate Division essentially called into question the holding of the Appellate Term 7 years ago in Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.,17 Misc.3d 97 (App. Term 1st Dept. 2007)(“[a]ccident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries”) through holding that a biomechanical expert need not have medical credentials to offer an opinion, within a reasonable degree of engineering certainty, that that motor vehicle accident did not cause the injuries at bar.

The case held as follows:

“The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained (see e.g. Melo v Morm Mgt. Co., 93 AD3d 499, 499-500 [1st Dept 2012]). McRae’s stated education, background, experience, and areas of specialty, rendered him able him to testify as to the mechanics of injury (see Colarossi v C.R. Bard, Inc., 113 AD3d 407 [1st Dept 2014]).

Plaintiffs’ challenge to Dr. McRae’s qualifications and the fact that his opinion conflicted with that of defendant’s orthopedic expert go to the weight and not the admissibility of his testimony (see Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006]). Plaintiffs’ challenge to the basis for Dr. McRae’s opinion addressed only portions of the evidence relied upon by him. Furthermore, the record shows that plaintiffs improperly attempted to put defendant to his proof [*2]by asserting, in the moving papers, that “defendant has not shown that the hearsay studies’ Mr. McRae relies upon are reliable,” without identifying any of the studies referred to or explaining the basis for the belief that the studies were not reliable.”

Trial De Novo granted and declaration of non-coverage granted

Allstate Ins. Co. v. Phelps Memorial Hospital, 2013 NY Slip Op 33590(U)(Sup. Ct. Nassau Co. 2013)

“This Court conducted a non-jury trial on matter on November 7, 2013, and
reserved decision. The plaintiffs expert credibly testified the treatment rendered to Jorge  Caniero was neither caused by the November 18, 2010 motor vehicle accident nor was  there any exacerbation of a pre-existing condition caused by that same accident. The  Court finds Jorge Caniero was admitted to Phelps Memorial Hospital on suspicion he  experienced a stroke which was not related to the November 18, 20 I 0 motor vehicle  accident. The Court also finds the treatment rendered by the defendant was related to the  diagnosis of acute CVA hypertension, diabetes, mellitus, coronary artery disease and  hyperlipidemia. These conditions were not causally related to the November 18, 2010  motor vehicle accident.

“The plaintiff proffered medical facts by its expert which were sufficient to show the medical condition  for which Jorge Caniero was treated was not related to the November 18, 2010 motor vehicle accident nor was there any exacerbation of a pre-existing condition caused by that same accident”

This is an interesting order as it is one of the few times a lack of causation defense has actually been successful.  It seems to help that Defendant did not put on a case?  If you look at the history of this matter, Defendant made a motion to dismiss the action as time barred, presumably because the Trial de-novo/declaratory judgment action was not commenced within the 90-day period set forth in Article 75 of the CPLR.  This motion was denied.

I suspect Defendant’s motion should have probably been granted.  The simple reason is that assuming the demand for trial de-novo occurs more than 6-years after the claim became overdue, while the original arbitration was commenced timely, then the trial de novo would be time barred.  I am not sure that makes sense and is in accord with the meaning of Ins. Law 5106(c).

Proof that the injury was pre-existing was not refuted

Russell v Cornell Univ., 2013 NY Slip Op 06771 (3d Dept 2013)

“Defendants satisfied their initial burden of establishing that plaintiff did not suffer a causally related serious injury through submission of plaintiff’s medical records and deposition testimony reflecting that plaintiff had a significant history of cervical injury and was receiving ongoing treatment for such injury at the time of the subject accident (see Putnam v Sysco Corp., 101 AD3d 1571, 1572 [2012]; Anderson v Capital Dist. Transp. Auth., 74 AD3d 1616, 1616-1617 [2010], lv denied 15 NY3d 709 [2010]; Foley v Cunzio, 74 AD3d 1603, 1604 [2010]). Moreover, plaintiff’s complaints of neck injury prior to and after the 2007 accident were identical and MRI images showed no change in the condition of plaintiff’s herniated disc at C6-7 from before the 2007 accident to the time of her surgery in 2009. Defendants also submitted the report of an independent medical examination that detailed plaintiff’s medical treatment from 2005 to 2009 and opined that there was no causal relationship between her cervical injury and the 2007 accident.

Faced with such competent evidence that plaintiff’s claimed injury was related to a preexisting condition, plaintiff then had the burden to come forward with objective medical evidence distinguishing her preexisting condition from the injury claimed to have been caused by this accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Putnam v Sysco Corp., 101 AD3d at 1572-1573; Falkner v Hand, 61 AD3d 1153, 1154 [2009]). This, plaintiff failed to do. Plaintiff submitted the reports of two physicians indicating that her preexisting condition was exacerbated by the 2007 accident. However, these physicians apparently based their conclusions upon plaintiff’s representations that her symptoms worsened following the 2007 accident, but their reports did not offer objective evidence differentiating plaintiff’s condition prior to the 2007 accident from her condition after the 2007 accident or distinguishing the injury allegedly sustained in that accident from the preexisting injuries (see Foley v Cunzio, 74 AD3d at 1605; Falkner v Hand, 61 AD3d at 1154-1155). Accordingly, plaintiff failed to raise an issue of fact sufficient to survive summary judgment and the complaint should be dismissed.”

A very interesting discussion on how causation is analyzed.

Causation speculative after trial; 4404(a) motion granted and $200,000 jury verdict vacated

McDonald v Kohanfars, 2013 NY Slip Op 03821 (2d Dept. 2013)

“In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Queens County (Lane, J.), dated November 22, 2010, which, inter alia, denied that branch of their motion which was pursuant to CPLR 4404 to set aside a jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as denied her cross motion to set aside, as inadequate, the jury verdict awarding damages for past and future pain and suffering in the sum of $200,000.

“At a trial on the issue of damages, the plaintiff testified that she had previously injured her neck in a work-related accident in 1992 and had fusion surgery in February 1996, followed by six months of physical therapy; after that surgery, a followup MRI taken in 1996 revealed a bulging disc at level C4-5, but she had no further pain or treatment after May 1997. Following the subject automobile accident on January 20, 2005, the plaintiff experienced pain in her neck but did not seek treatment until her neck became stiff a couple of days later. She underwent physical therapy and took pain medication from 2005 through 2007 to treat her stiff neck, pain in her neck, arms, and hands, and numbness in her hands. She further testified that, on May 7, 2008, she had fusion surgery on her neck, after which she wore a neck collar for a couple of months. At the time of trial, she continued to take painkillers, receive medical treatment, and undergo physical therapy.

The plaintiff’s orthopedic surgeon, Dr. Jonathan Lewin, testified that he started treating the plaintiff in December 2007. Dr. Lewin reviewed the operative report for the plaintiff’s 1996 fusion surgery at the C5-6 disc level of her neck, but did not review any of the plaintiff’s treatment records related to her 1992 work-related accident and 1996 surgery; he opined that the plaintiff had been successfully treated in 1996. Dr. Lewin reviewed a CAT scan taken in February 2005, about a month after the subject automobile accident, which showed degeneration at disc levels C4-5 and C6-7.  Dr. Lewin ordered an MRI, which was taken in January 2008 and revealed a herniated disc in the plaintiff’s neck. More than three years after the subject accident, on May 7, 2008, Dr. Lewin performed a discectomy, removing the herniated disc between C-4 and C-5 to take pressure off the nerve roots, and fused the spine. An MRI taken in July 2009 continued to show a bulging disc at the C6-7 level. Dr. Lewin testified that persons with prior fusion surgery had a 5-15% chance of needing a second surgery even without a subsequent accident, but that the plaintiff would not have needed the second fusion surgery if not for the subject accident. He further testified that the plaintiff had diminished motion in her spine which resulted in a consequential limitation in the use of her neck, and that he had performed range-of-motion testing during his examinations of the plaintiff but could not find any mention of such testing in his records.

Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff’s alleged serious injury was causally related to the subject automobile accident (see Pommells v Perez, 4 NY3d 566, 574; Kilakos v Mascera, 53 AD3d 527, 528-529; Ekundayo v GHI Auto Leasing Corp., 273 AD2d 346, 347). Given the evidence of the plaintiff’s previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff’s expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff’s injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury

Here is the summary:

(1) Prior accidents in 1992, 1996

(2) C-5,C-6 fusion in 1996

(3) 2005 motor vehicle accident

(4) CT Scan in 2005 shows degeneration at C-5,C-6 – no traumatic findings

(5) C-5, C-6 spinal fusion again in 2008

(6) Doctor testifies that there is a 10-15% chance that those with a prior spinal fusion will need another fusion even if there is no subsequent MVA.  (Good question on cross)

(7) States within a reasonable degree of medical certainty that C-5, C-6  fusion was causally related to the 2005  motor vehicle accident.

Court holds that causation is speculative and reverses the $200,000 damages award.

Would the result of on a no-fault case where the carrier bears the burden to show that the injuries were not causally related have differed from this personal injury case, where the plaintiff has to show prima facie causation?  I do not know the answer.


Chubb defense substantiated and unrebutted on this record

Shahid Mian, M.D., P.C. v Interboro Ins. Co., 2013 NY Slip Op 50589(U)(App. Term. 1st Dept. 2013)

“In opposition to the defendant-insurer’s prima facie showing that the assignor’s treated medical condition was not causally related to the underlying motor vehicle accident (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999]), plaintiff failed to raise a material issue requiring a trial of its claim for assigned no-fault first-party benefits. The bare bones affidavit filed by plaintiff’s principal, an orthopedist who performed the surgical procedure giving rise to this no-fault action, was insufficient to defeat summary judgment. The affiant failed to set forth a factual basis for his single-sentence conclusion on the critical causation issue, and did not address, let alone rebut, the contrary findings made by defendant’s medical experts.

This was my case.  The defense was based upon a radiological review and a peer review, based upon the radiological review and plaintiff’s medical records.  For those that remember Stephen Fealy v. State Farm, the affidavit, in rebuttal in this case, was better than the affidavit in rebuttal case.  Note my comment in Amherst Medical Supply, where the court evaluated these cases under a 5102(d) prism.

Absence of a business record entry = no motor vehicle accident

Jesa Med. Supply, Inc. v NYC Tr. Auth., 2013 NY Slip Op 50188(U)(App. Term 2d Dept. 2013)

“In support of its cross motion for summary judgment dismissing the complaint, defendant NYC Transit Authority (NYCTA) submitted an affidavit from its claims examiner, who stated that it is NYCTA’s business practice to maintain a log of all people injured or involved in a motor vehicle accident involving a NYCTA vehicle. Since the only information that had been provided to defendant was the date on which plaintiff’s assignor had allegedly been injured while a passenger on defendant’s bus, defendant’s claims examiner had searched defendant’s records and found that there was no record indicating that plaintiff’s assignor had been injured as a [*2]passenger, or otherwise, by a NYCTA vehicle on the date of the alleged accident or even that she was at the scene of an accident involving a NYCTA vehicle on the date in question”

A search of a business record which shows the absence of an event is prima facie proof that the event never occurred.  Another in a short series of “it never happened” cases.

Oh Pearl

Grant v United Pavers Co., Inc., 2012 NY Slip Op 00239 (1st Dept. 2012)

Although plaintiff’s physicians did not expressly address defendants’ expert’s conclusion that the injuries were degenerative in origin, by relying on the same MRI report as defendants’ expert, and attributing plaintiff’s injuries to a different, yet equally plausible cause, plaintiffs raised a triable issue of fact (see Lee Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [2011]; Linton v Nawaz, 62 AD3d 434, 440 [2009], affd 14 NY3d 821 [2010]). Although “[a] factfinder could of course reject this opinion” (Perl v Meher, __ NY3d __, 2011 NY Slip Op 08452 [2011]), we cannot say on this record, as a matter of law, that plaintiff’s injuries had no causal connection to the accident.”